THE BLOG
10/01/2012 03:10 pm ET Updated Dec 01, 2012

Gary Johnson, Antitrust Plaintiff, Sues Major Parties for Monopolizing Politics

Lawsuits are common in politics, but there was one filed recently that is not common at all: someone has brought an antitrust suit, alleging that the major political parties have monopolized politics, and it is not exactly some crackpot who did it. The plaintiff is Gary Johnson, who is the Libertarian Party's nominee to be President, and who was not long ago the Governor of New Mexico. Governor Johnson's campaign filed suit on Friday in a California federal court, alleging that the Democrats, the Republicans, and the Commission on Presidential Debates have conspired to exclude other candidates in violation of the Sherman Antitrust Act. Governor Johnson seeks to enjoin the Presidential debates until other candidates are permitted to participate, so as to "restore competition and a level and honest playing field amongst those persons seeking the presidency . . . ."

Initially I thought the press release announcing the suit might be bogus; it went out on Friday, and was picked up by quite a few libertarian websites, but has been largely ignored in the mainstream media. But it's for real, as both the campaign and the federal courts' online dockets database confirmed for me.

While this suit may not get far in the courts (as I will explain), I think that is kind of a shame. I hope and expect that the campaign's real motive is not so much to win the case as to make a point that will get some attention. The point in filing this suit with only the one, sole antitrust claim seems to be to say that the parties have become just another oligopoly, like the other business oligopolies arrayed against the public interest. Among other things, the complaint makes a nice point of the noisy protest of some years ago by the League of Women Voters, when it withdrew its sponsorship of the presidential debates in the late 1980s. The League--hardly a radical or imprudent group--thought the debates had come to be no less than a "fraud" and a "hoodwinking of the American people."

For better or worse, here's why the case won't get very far. Antitrust applies only to conduct that constitutes "trade or commerce," as those terms are defined in the antitrust statutes. The plaintiffs here have an interesting and surely novel argument that antitrust should apply: they point out that the offices of President and Vice President pay a salary, and that the salary they receive is in exchange for "services." To support their view that those facts make this a case about "commerce," they point to a famous Supreme Court opinion finding that the "services" provided by lawyers are "commerce," and therefore are subject to antitrust.

The argument is not actually that bad in its own way, but it won't work. While the particular facts here are admittedly novel, the courts have considered plenty of cases that seem pretty close, and throughout those cases the Supreme Court has been emphatic that "the antitrust laws regulate business, not politics."
And there is also one case from a federal appellate court, a case the defendants here have already pointed to in the very limited press coverage the suit has gotten, that's pretty much on point: while it was a humble case involving election to county government in rural Arizona, the court held that election to political office is not "trade or commerce."

Nobody in the case is an antitrust lawyer. It appears that the party's Vice Presidential candidate, a retired California trial judge named James Gray, will himself personally argue for a temporary restraining order in the case. Lead counsel on the brief is a long-time personal injury lawyer from Orange County, Paul Rolf Jensen.